Have Nigerian social activists not been surprised that their seething rage against the so-called anti-social media bill in the Senate has not attracted sympathy from their traditional allies in the Western world?
The truth is: the allies know that the absolute freedom being sought in Nigeria is not absolute in their own countries too, except for the United States of America where, in spite of the First Amendment, free speech also carries some measure of responsibility!
Yes, President Muhammadu Buhari has disowned the bill and even given a hint that he might veto it, if passed. Of course, it is poetic justice that such a law is being proposed by a government led by the All Progressives Congress (APC), which as an opposition party rode on the back of an hyperactive social media to wrest power from the then ruling Peoples Democratic Party (PDP).
However, the truth must be told – freedom is not, and cannot be, absolute. If not, there will be chaos, absolute chaos in the land.
That the PDP-led government shirked its responsibility, and did not enact the Cyber Crimes Act 2015 until it was too late to be effective while it held the reins of power, is no fault of the APC.
Although the current bill may appear to be an attempt at self-preservation by the new governing party, the truth is that the freedom of expression guaranteed by the 1999 Constitution does not permit citizens to lie against others or maliciously attack the reputations of others without proof, hard proof, as is mostly the case in the Nigerian social media world.
The patron-saint of the Cyberlitarian school of thought, America’s John Perry Barlow, published “A Declaration of the Independence of Cyberspace”. He states, in part: “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”
By 2004, even Barlow reviewed his position and declared: “We all get older and smarter”.
Libel and slander can be devastating, especially the former because of its permanent nature. In the social, it can be devastating.
How many newspapers have more than 100,000 print-run in today’s Nigeria? Compare the potential for damaging people’s reputations through the traditional media with the instantaneous and hundreds of millions of consumers through the internet?
Therefore, there is a need for self-censorship, as recently canvassed by the Minister of Information and Culture, Alhaji Lai Mohammed.
That is the truth.
Remember the 2010 tweeter joke trial in the UK? A Briton, Paul Chambers, who was exasperated about flight delays at the Robin Hood Airport, caused by heavy snow, tweeted: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”
To him, the tweet was a joke, but to the British Police, it was a serious matter.
Chambers was arrested and prosecuted under the Communications Act 2003. Although his conviction was upturned on appeal, the message had been sent: Before you click, think!
The headline above, by the way, was by no means mine. It was a phrase coined by the Philippines-based news medium, GMA News in 2011 to promote responsible use of the social media.
There are more examples of how strict the UK and the European Union courts are about the need for responsible use of the social media, which Nigerian social media activists seem to oppose.
Following the August 2011 riots, a drunken 22-year-old man created a Facebook page to encourage the rioters and called it “The Warrington Riots.”
He was promptly arrested and charged with encouraging a riot under the UK Serious Crimes Act of 2007. He was sentenced to four years in jail.
Nineteen-year-old Matthew Woods posted on Facebook “abhorrent” jokes about a missing girl. British Police officers arrested and arraigned him in court. He was jailed three months.
Twenty-one –year-old Stacy Liam tweeted “LOL” – meaning Laugh Out Loud – when footballer Fabrice Muamba collapsed on a pitch and died (but was revived). Stacy was arrested and jailed for 56 days.
Azhar Ahmed posted on Facebook: “All soldiers should die and go to hell” in reaction to UK soldiers being deployed in Afghanistan. He was held to have sent a “grossly offensive communication” and was both fined and sentenced.
Perhaps, the only country that grants freedom of expression in a near-absolute state, is the United States of America where the First Amendment holds sway.
The Amendment to the US Constitution states in part: “Congress shall make no law … abridging the freedom of speech, or of the press …”
The amendment takes its root from the seminal thoughts of J.S. Mill, who states thus: “I disapprove of what you say, but I will defend to the death your right to say it.”
Armed by this Amendment, the US courts have on innumerable occasions held in favour of free speech, even to the extent of disregarding the decisions of the courts of sovereign nations. An example is in Yahoo!, Inc. v. La Ligue Contre Le RacismeetL’Antisemitisme, et al (Wojciech Sadurski, ‘Allegro without Vivaldi: trademark protection, freedom of speech, and constitutional balancing’ (2012) E.C.L.).
In that case, a Northern District of California Court in the US declared unenforceable the judgement of a French court against the internet service provider and search engine.
The court in France had issued the order against the company for hosting an auction site which offered Nazi items for sale to the world, including French citizens.
And, in Reno v ACLU, (521 U.S. 844 (1997), all nine justices of the US Supreme Court held that First Amendment protection extends to online hate speech.
With the legal protection came a boom in all kinds of hate speech. A Facebook group had as its name: Kill A Jew A Day! Its members picked June 4, 2010 for the start of an 18-day policy of non-stop physical attacks “anywhere you see a Jew.”
Its profile featured a swastika as well as images of dead bodies piled on top of one another. Its members commented that they could not “wait to rape the dead baby Jews. The group was hosted in the US, of course.
Kill A Jew a Day was eventually pulled down by Facebook in accordance with the company’s regulations, and as a social responsibility, not because of any governmental censure.
Yet, and quite interesting, even the US does not make freedom of expression an absolute right. As far back as 1925, in Gitlow v New York (268 U.S. 652), the court held: “It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”
The US court has refused to grant protection to speeches that constitute obscenity, child pornography or advocate “the use of force or of law violation … where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Henry Cohen, “Freedom of Speech and Press: Exceptions to the First Amendment”, (2009), Congressional Research Service 7-5700, P.1).
The Court has specifically withheld First Amendment protection to “true threat,” meaning: “a threat of imminent harm to an identiﬁable victim.”
In Planned Parenthood v ACLA (290 F.3d 1058), a trial jury held that the website of the defendant was a true threat to the family and persons of the plaintiffs. It awarded $100 million as damages in favour of the plaintiffs. The verdict was upheld on appeal.
A successful criminal investigation under the true test doctrine was that of a 21-year-old student of the University of California, Irvine, who sent hate-based email to 57 Asian students entitled ‘F*ck You Asian Sh*t’ (United States v. Machado, 195 F.3d 454 (9th Cir. 1999).
In the email, he warned the recipients that if they did not leave the campus, he would “personally . . . make it my life career to ﬁnd and kill everyone one of you personally. OK?????? That’s how determined I am . . . Get the f*ck out.”
He sent the email from an account that obscured his identity. The student was, however, found and after a first hung jury, he was sentenced to one year in jail for sending threatening messages.
Also, Kingman Quon, who sent hate speeches to Hispanic Faculty members at the California State University, Los Angeles, and students at the Massachusetts Institute of Technology, describing the recipients as “too stupid” to have been admitted to college and threatening to “come down and kill them”, was equally handed a two-year jail term for issuing threatening messages.
The moral: Free speech is not absolute, even in the US.
The plan by the Senate to enforce sanity in the use of the social media is by no means an isolated action by corruption-friendly Nigerian politicians, and should not be viewed as such.
Instances abound of people who posted petitions against public officers on the internet, followed by a hail of demands that they be removed from office. At the end, the petitions turned out to be false and frivolous.
That social media activists helped install the current government is no reason they should allowed to pull it down unnecessarily.
False publication on Facebook, tweeter, chat groups and other social media fora must attract due sanction. The challenge should be to help the National Assembly ensure that the punishment for false petitions is commensurate with the offence.
Before you click, think, please.
Olujimi is a Lagos State-based legal practitioner and journalist.